Gas Safety Certificates, Assured Shorthold Tenancies and Section 21 Notices

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The Court of Appeal has given permission to appeal in the case of Trecarrell House Limited v Rouncefield. The result of the appeal will bring some much needed clarity to the private and social rented sectors. It will deal with the issue of whether a landlord may serve a valid section 21 notice upon an assured shorthold tenant in circumstances where the landlord has failed to provide a gas safety certificate to the tenant before they moved in.

Changes made by the Deregulation Act 2015 created more obstacles for a landlord wishing to serve a valid section 21 notice to end a tenancy. In addition to the landlord being required to have protected any deposit, and to have served the relevant statutory information in relation to its protection, they were required to serve the tenant with a copy of the EPC, How to Rent Guide and gas certificate prior to serving a section 21 notice.

In the problematic decision in Caridon Properties Ltd v Monty Schooltz, His Honour Judge Luba QC held that the failure to serve a gas certificate before the tenant occupied the property could not be rectified by serving the notice after the tenant had moved in but before the s21 notice was served. Whilst the decision was not binding in other Courts, it was persuasive and clearly influenced His Honour Judge Carr in the case now under appeal – Trecarrell House Limited v Rouncefield.

The decision in Caridon Properties Ltd v Monty Schooltz has left some landlords unable to rely upon s21 notices to bring an assured shorthold tenancy to an end in circumstances where they have not served the gas certificate. This also applies in the case of Trecarrell House Limited v Rouncefield, where the gas certificate was not prominently displayed and the gas appliances and supply were communal and not supplied directly to the tenants flat. Further, even if the gas certificate was served before the tenant occupied, a landlord or agent who had not obtained written receipt for the certificate could find themselves in difficulties if the tenant denied having been given the certificate. In cases where the landlord cannot serve a valid s21 notice, the tenant obtains a very significant security of tenure and, unless the tenancy is breached, the landlord is unable to rely upon the s21 “no fault” procedure to remove them.

There will now be a wait for the hearing of Trecarrell House Limited v Rouncefield in the Court of Appeal. The issues before it will be whether the correct reading of the law does indeed require the landlord to have served the gas safety certificate before the tenant moved in and at the point of the first tenancy sign up, or whether service at any time prior to the service of the s21 notice will suffice (as is the case with the EPC and How to Rent Guide). The Court will also consider whether, if the law requires the certificate to be served prior to the start of the tenancy to serve a s21, this requirement interferes with the landlords human rights in so far as the landlord has a right to the quiet enjoyment of possessions.

Given recent indications by the Government, the future of s21 is uncertain, but in the shorter term, clarification on this point will be welcome.